State v. HarperState v. Harper
NUNC PRO TUNC
{¶1} Defendant-appellant Henry Harper appeals the judgment of the Guernsey County Court of Common Pleas convicting him of Kidnapping with a firearm specification, a felony of the second degree, Having Weapons While Under a Disability a felony of the third degree, and Discharge of a Firearm on or Near Prohibited Premises a misdemeanor of the first degree. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On May 7, 2010 appellant was employed by Little Bear Construction which is owned by David Ratliff, it was Friday and a pay day. There was a disagreement at work and appellant left the work sight and went to the home of Mr. Ratliff. Appellant was anxious, excited, and argumentative.
{¶3} After leaving Mr. Ratliff‘s residence, appellant arrived at the residence of a friend, Charles Dalton, at approximately 5:30 p.m. At the Dalton residence, appellant was observed to be agitated and in possession of a black handgun.
{¶4} At approximately 7:30 p.m. appellant‘s wife, Tina Harper, arrived home from running errands to find her husband drinking and upset. Appellant said to his wife, “Bitch, you‘re going to take me down there,” meaning to Mr. Ratliff‘s residence. (T. at 287). Appellant was knocking things off the kitchen counter, breaking things, and would not calm down. Appellant knocked a frying pan off the stove and ordered Mrs. Harper to drive him to Mr. Ratliff‘s home. Appellant stated that he was going to “teach him a lesson.” (T. at 288). Mrs. Harper drove appellant and they stopped at different places including a service station and a friend‘s home.
{¶6} After this incident, appellant came into contact with a friend Robert Webb, to whom he relayed the information that he had “just shot at some people.” (T. at 271).
{¶7} At 10:27 p.m. on May 7, 2010, the Guernsey County Sheriff‘s Office received a call regarding shots being fired at the residence of David Ratliff. Upon arrival at the scene, the deputies discovered several spent Winchester 9 mm casings along the roadway in front of the residence. Mr. Ratliff informed the deputies that earlier that day he had a disagreement with appellant regarding some occurrences on a job site.
{¶8} At approximately 11:30 p.m. on the same night, the deputies were en route to the Sheriff‘s Office when they received another call regarding a man with a pistol. Upon learning that the subject of the call was appellant, the deputies went to appellant‘s home. Appellant was not at the residence, but his wife arrived shortly after the deputies, driving a silver S-10 pickup truck. At the time of her arrival at the residence, Mrs. Harper told the deputies that she did not know the current whereabouts of appellant.
{¶9} Mrs. Harper permitted the deputies to search the residence. During that search, the deputies discovered a partial box of Winchester 9 mm bullets and empty
{¶10} Upon arriving at Mr. Dalton‘s residence, the deputies patted appellant down for weapons. At the Sheriff‘s Office, appellant submitted to a gunshot residue swab. Appellant was asleep in the holding cell and his right arm was resting underneath his body. When the deputy asked appellant for his left hand in order to conduct the gunshot residue test appellant raise his left arm straight up in the air allowing the deputy to conduct the test. When the deputy asked for his right hand, appellant did not answer or otherwise comply with the request. Appellant tested positive for gunshot residue.
{¶11} Testimony was introduced at trial that appellant owned a gun and that he had it with him that night. In addition appellant acknowledged that he had been convicted of a felony about twenty-five (25) years before the night in question. Further it was acknowledged that there was no record that was attached or a part of the original case to indicate that appellant had expunged or sealed that record. However, appellant testified that he had purchased guns legally since his previous felony and had gone through records checks for those purchases. He had further passed records checks for federal employment and other jobs that he had held. Finally, appellant testified that he had asked his attorney to file and seal his record and that he thought that had been done some years before the incidents which occurred May 7, 2010 and which resulted in these charges being filed.
{¶12} On May 25, 2010, appellant was indicted by the Guernsey County Grand Jury for the following:
{¶14} Tampering With Evidence in violation of
{¶15} Discharge of Firearm on or Near Prohibited Premises in violation of
{¶16} Kidnapping in violation of
{¶17} On October 15, 2010, the jury returned the following verdicts:
{¶18} GUILTY of Having Weapons While Under Disability in violation of
{¶19} NOT GUILTY of Tampering With Evidence in violation of
{¶20} GUILTY of Discharge of Firearm on or Near Prohibited Premises in violation of
{¶21} GUILTY of Kidnapping, a felony of the second degree.
{¶22} On November 3, 2010, appellant was sentenced to three years imprisonment for Count 1, six months imprisonment for Count 3, two years imprisonment for Count 4, and three years imprisonment for the Firearm Specification to Count 4. The three year mandatory sentence for the Firearm Specification was ordered to be served first with all remaining prison terms to be served consecutively, for a total of eight years imprisonment.
{¶24} “I. THE DECISION WAS AGAINST THE SUFFICIENCY AND MANIFEST WEIGHT OF THE EVIDENCE.
{¶25} “II. THE TRIAL COURT COMMITTED ERROR BY IMPROPERLY CHARGING THE JURY.
{¶26} “III. APPELLANT WAS DENIED HIS RIGHT BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL.”
I.
{¶27} In his first assignment of error, appellant maintains that his convictions are against the weight of the evidence and are based upon insufficient evidence. We disagree.
{¶28} Our review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, which requires a court of appeals to determine whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also McDaniel v. Brown (2010), --- U.S. ----, 130 S.Ct. 665, 673, 175 L.Ed.2d 582 (reaffirming this standard). See, State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010-Ohio-2720 at ¶68.
{¶30} Second, after viewing the evidence in the light most favorable to the prosecution, the reviewing court must determine whether this evidence, so viewed, is adequate to allow “any rational trier of fact [to find] the essential elements of the crime beyond a reasonable doubt.” Jackson, 443 U.S. at 319, 99 S.Ct. 2781, 61 L.Ed.2d 560; State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541; State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492. See, State v. Clay, supra at ¶ 70.
{¶31} This second step protects against rare occasions in which “a properly instructed jury may * * * convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt.” Jackson, 443 U.S. at 317, 99 S.Ct. 2781, 61 L.Ed.2d 560. More than a “mere modicum” of evidence is required to support a verdict. Id. at 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (rejecting the rule that a conviction be
{¶32} Manifest weight of the evidence claims concern the amount of evidence offered in support of one side of the case, and is a jury question. We must determine whether the jury, in interpreting the facts, so lost its way that its verdict results in a manifest miscarriage of justice, State v. Thompkins (1997), 78 Ohio St. 3d 387, 678 N.E.2d 541, 1997-Ohio-52, superseded by constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668. On review for manifest weight, a reviewing court is “to examine the entire record, weigh the evidence and all reasonable inferences, consider the credibility of the witnesses and determine whether in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the judgment must be reversed. The discretionary power to grant a new hearing should be exercised only in the exceptional case in which the evidence weighs heavily against the judgment.” State v. Thompkins, supra, 78 Ohio St.3d at 387, citing State v. Martin (1983), 20 Ohio App.3d 172, 175. Because the trier of fact is in a better position to observe the witnesses’ demeanor and weigh their credibility, the weight of the evidence and the credibility of the witnesses are primarily for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, syllabus 1.
{¶34} Appellant was found guilty of Kidnapping.
{¶35} In the case at bar, appellant’s wife testified that she was scared and afraid of appellant and that he threatened physical harm to her if she did not comply with his directions. It was further clear that by forcing Mrs. Harper to drive him to Mr. Ratliff’s home, she facilitated the commission of the felony and the flight thereafter.
{¶36} Viewing the evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that appellant had committed the crime of kidnapping. We hold, therefore, that the State met its burden of production regarding each element of the crime of kidnapping and, accordingly, there was sufficient evidence to support appellant’s conviction.
{¶38} Although appellant cross-examined the witnesses and argued that Mrs. Harper was left alone during the time she was in the car with appellant and further that she did not ask for help when she had the opportunity to do so to negate the State’s argument that he kidnapped his wife, the weight to be given to the evidence and the credibility of the witnesses are issues for the trier of fact. State v. Jamison (1990), 49 Ohio St.3d 182, certiorari denied (1990), 498 U.S. 881. The jury was free to accept or reject any and all of the evidence offered by the parties and assess the witness’s credibility. “While the jury may take note of the inconsistencies and resolve or discount them accordingly * * * such inconsistencies do not render defendant‘s conviction against the manifest weight or sufficiency of the evidence“. State v. Craig (Mar. 23, 2000), Franklin App. No. 99AP-739, citing State v. Nivens (May 28, 1996), Franklin App. No. 95APA09-1236 Indeed, the jurors need not believe all of a witness’ testimony, but may accept only portions of it as true. State v. Raver, Franklin App. No. 02AP-604, 2003-Ohio-958, at ¶ 21, citing State v. Antill (1964), 176 Ohio St. 61, 67, 197 N.E.2d 548.; State v. Burke, Franklin App. No. 02AP-1238, 2003-Ohio-2889, citing State v. Caldwell
{¶39} After reviewing the evidence, we cannot say that this is one of the exceptional cases where the evidence weighs heavily against the convictions. The jury did not create a manifest injustice by concluding that appellant was guilty of the crime of Kidnapping as charged in the indictment.
{¶40} We conclude the trier of fact, in resolving the conflicts in the evidence, did not create a manifest injustice to require a new trial. The evidence in the record could convince a reasonable trier of fact that the elements of Kidnapping had been met by the state.
{¶41} Appellant‘s conviction for Kidnapping is supported by sufficient evidence, and not against the manifest weight of the evidence.
{¶42} Appellant was also convicted of having weapons while under disability.
{¶43} “* * *
{¶44} “(2) The person is under indictment for or has been convicted of any felony offense of violence or has been adjudicated a delinquent child for the commission of an offense that, if committed by an adult, would have been a felony offense of violence.”
{¶46} Viewing the evidence in a light most favorable to the prosecution, we conclude that a reasonable person could have found beyond a reasonable doubt that appellant had committed the offense of having weapons while under disability. We hold, therefore, that the State met its burden of production regarding each element of the crime of having weapons while under disability and, accordingly, there was sufficient evidence to support appellant’s conviction.
{¶47} Appellant argued that he had believed his conviction for aggravated assault had been sealed, and further that he had past several background checks which should have revealed the existence of his disability under
{¶48} In State v. Johnson, 128 Ohio St.3d 107, 942 N.E.2d 347, 2010-Ohio-6301, the Ohio Supreme Court held, “A conviction for violation of the offense of having weapons while under disability as defined by
{¶49} Under the plain language of
{¶50} We find the same analysis applies to a violation of
{¶51} We conclude the trier of fact, in resolving the conflicts in the evidence, did not create a manifest injustice to require a new trial. The evidence in the record could convince a reasonable trier of fact that the elements of having weapons while under disability had been met by the state.
{¶52} Appellant‘s conviction for having weapons while under disability is supported by sufficient evidence, and not against the manifest weight of the evidence.
{¶53} Appellant’s First Assignment of Error is overruled.
II.
{¶54} In his Second Assignment of Error, appellant maintains that the trial court improperly charged the jury regarding the definition of knowingly with respect to the charge of having weapons while under disability. We disagree.
{¶55} In the case at bar, the trial court instructed the jury as follows:
{¶57} Appellant argues that the trial court should have also instructed the jury, “Knowingly means that a person is aware of the existence of the facts and that his acts will probably (cause a certain result) (be of a certain nature).” OJI 417.11 CR.
{¶58}
{¶59} As noted in our disposition of appellant’s First Assignment of Error, supra. “
{¶60} Accordingly, we find no plain error affecting appellant‘s substantial rights occurred as a result of the trial court’s instructions to the jury and the failure to instruct the jury as suggested by appellant.
{¶61} Appellant’s Second Assignment of Error is overruled.
III.
{¶62} In his Third Assignment of Error appellant contends that his trial counsel was ineffective. Specifically, appellant argues counsel was ineffective by failing to present a copy of his actual B.C.I. criminal record which would show that his previous felony conviction had been sealed and was not a part of his criminal record. In addition his trial counsel did not object to information coming before the jury concerning the appellant‘s misdemeanor convictions for Domestic Violence. We disagree.
{¶63} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel‘s performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel‘s essential duties to appellant. The second prong is whether the appellant was prejudiced by counsel‘s ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
{¶64} In order to warrant a finding that trial counsel was ineffective, the petitioner must meet both the deficient performance and prejudice prongs of Strickland and
{¶65} To show deficient performance, appellant must establish that “counsel’s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104 S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. Strickland v. Washington 466 U.S. at 688, 104 S.Ct. 2052 at 2065.
{¶66} “Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel‘s challenged conduct on the facts of the particular case, viewed as of the time of counsel‘s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel‘s function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064.
{¶68} Appellant must further demonstrate that he suffered prejudice from his counsel’s performance. See Strickland, 466 U. S., at 691 (“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. To prevail on his ineffective-assistance claim, appellant must show, therefore, that there is a “reasonable probability” that the trier of fact would not have found him guilty.
{¶69} Although appellant argues that his B.C.I. record would show his previous conviction was sealed, he did not proffer that record in the trial court. In State v. Hooks (2001), 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528, the Court noted: “[h]owever, a reviewing court cannot add matter to the record before it that was not a part of the trial court‘s proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail (1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500. It is also a longstanding rule “that the record cannot be enlarged by factual assertions in the brief.”
{¶70} Appellant next argues that his trial counsel was ineffective because he did not object to information coming before the jury concerning appellant‘s misdemeanor convictions for Domestic Violence.
{¶71} In the case at bar, the prosecutor did not link this testimony to one of the enumerated reasons set forth in Evid. R. 404(B), (i.e., proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident). Accordingly, the prosecutor has failed to establish that such evidence was properly admitted. However, the admission of prior bad acts is deemed harmless unless there is some reasonable probability the evidence contributed to the accused‘s conviction, City of Columbus v. Taylor (1988), 39 Ohio St.3d 162, 529 N.E.2d 1382.
{¶72} “‘The failure to object to error, alone, is not enough to sustain a claim of ineffective assistance of counsel.’ ” State v. Fears (1999), 86 Ohio St.3d 329, 347, 715 N.E.2d 136, quoting State v. Holloway (1988), 38 Ohio St.3d 239, 244, 527 N.E.2d 831.
{¶73} None of the instances raised by appellant rise to the level of prejudicial error necessary to find that he was deprived of a fair trial. Having reviewed the record that appellant cites in support of his claim that he was denied effective assistance of counsel, we find appellant was not prejudiced by defense counsel’s representation of him. The result of the trial was not unreliable nor were the proceedings fundamentally unfair because of the performance of defense counsel.
{¶74} Appellant has failed to demonstrate that there exists a reasonable probability that, had trial counsel objected to the mention of his misdemeanor convictions the result of his case would have been different.
{¶75} Because we have found no instances of error in this case, we find appellant has not demonstrated that he was prejudiced by trial counsel’s performance.
{¶76} Appellant’s third assignment of error is overruled.
By Gwin, P.J., and
Farmer, J., concur
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
WSG:clw 0925
HON. W. SCOTT GWIN
HON. SHEILA G. FARMER
HON. JULIE A. EDWARDS